Madras High Court
Gopalakrishna Trading Co. vs D. Baskaran on 20 April, 1992
Equivalent citations: [1994]80COMPCAS53(MAD)
JUDGMENT Janarthanam, J.
1. Gopalakrishna Trading Co., which is dealing in submersible pump sets, is situate at No. 116, Angappa Naicken Street, Madras-1.
2. Krishna Electricals and Hardwares, a partnership firm, is situate at No. 167-B, Nethaji Road, Manjakuppam, Cuddalore-607 001. One D. Baskaran is the managing partner of the said firm.
3. The said Baskaran in his capacity as managing partner, it is said, had been purchasing submersible pump sets from Gopalakrishna Trading Co. for quite long on credit basis and subsequently settling the account by the issuance of cheque for the purchases so made. On one occasion for the money due on the purchases so made, he appeared to have issued a cheque for Rs. 25,000 dated May 30, 1991, in favour of Gopalakrishna Trading Co. The cheque when presented by the said company on November 28, 1991, got bounced with an endorsement "insufficient funds" on December 10, 1991. After complying with other formalities, it is said Gopalakrishna Trading Co. represented by its manager, P. Sivaram, lodged a complaint against the said Baskaran for an alleged offence under section 138 of the Negotiable Instruments Act, 1881, before the Seventh Metropolitan Magistrate, George Town, Madras, on January 20, 1992.
4. The learned Magistrate returned the complaint with an endorsement as below :
"A partner or managing partner of the firm should appear in court to give sworn statement. To report on or after February 3, 1992, but before February 14, 1992. Time 10.15 a.m."
(Sd.) .........., 20-1-92, VII M. M., George Town, Madras."
5. Aggrieved by the order of return Gopalakrishna Trading Co. represented by its manager, Sivaram, came forward with the present action under section 482 of the Criminal Procedure Code seeking a direction that the complaint be taken on the file by the court below :
When this matter came for admission on February 5, 1992, the learned public prosecutor was requested to render assistance in the case and he agreed to do so, took notice and, thereafter, the case was adjourned from time to time.
6. Today (April 20, 1992), arguments of both learned counsel for the petitioner and learned public prosecutor were heard.
7. If the cause title as well as the averments made in the complaint are perused with a little bit of care, caution and circumspection, it emerges that the complaint had been filed by Gopalakrishna Trading Co. represented by its manager, P. Sivaram, and it is not as if the complaint had been lodged by Mr. Sivaram in his individual capacity.
"Explanation (a) to section 141 of the negotiable Instruments Act (for short "the Act") defines the company for the purpose of this Act and the said explanation runs as under :
"Explanation. - For the purpose of this section, -
(a) 'company' means any body corporate and includes a firm or other association of individuals."
8. Section 142(a) deals with cognizance of offences and the said section reads as under :
"Cognizance of offences. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque."
9. From the provisions as extracted above, it is rather crystal clear that for the refraction or violation of the provisions of section 138 of the Negotiable Instruments Act, the court is empowered to take cognizance of such offence only if the complaint is preferred by the payee or the holder in due course of the cheque. The special definition of "company" under the Act means any body corporate including a firm or other association of individuals which may be the payee or the holder in due course of the cheque.
10. The question that arises for consideration is as to what is the procedure to be followed in the case of preference or lodging of a complaint by the company, as defined under the Act. Known well, it is the company is a legal entity, not having soul, mind, body and limbs to walk to the court for preference of a complaint for the alleged refraction or violation of the provisions of section 138 of the Negotiable Instruments Act. The company as such has to be represented by some human agency in preferring a complaint before the court. There is no express or explicit provision in the Act as to in what manner the company is to be represented in preferring a complaint before the court for the alleged refraction or violation of the provisions under section 138 of the Act. The dictates of commonsense, practical wisdom, prudence and expedience impels the court in such a situation to enable the company to represent a compliant before the court represented by some person connected with the affairs of the company. The person connected with the affairs of the company in the normal run of things, may be either its manager, partner, managing partner or director or any other person authorised by the company, who can represent it during the course of legal proceedings before the court. Only by making such a construction and interpretation of the provisions of the aforesaid sections the provisions of the Act can be made to work and life thereby given, having teeth for the enforcement of the provision or any other interpretation given would have the effect of making no sense of those provisions, and will be only in the sense of defeating the very object for which the provisions had been enacted by the Legislature.
11. In the instant case the complaint having been given by Gopalakrishna Trading Co. represented by its manager, it cannot be stated that the complaint had been preferred by any person other than the company, which is the payee and which is entitled to prosecute the drawer of the cheque for committing the alleged refraction or violation of the provisions of section 138 of the Act.
12. In view of this, the return made by the court below is not really reflecting the provisions adumbrated under the Act as stated above and, therefore, it is that the court below is directed to take the complaint on file and dispose of the same according to law.
13. The petition is ordered accordingly.